Analysis of Illinois 2010 Redistricting Proposals

An analysis of 2010 redistricting legislation in Illinois, SC 121.

April 7, 2010

ILLINOIS 2010 REDISTRICTING PROPOSAL: SC 121

KEY POINTS:

The proposed constitutional amendment would not affect congressional districts. For the state legislative districts, the first shot at a plan would be by statute; if that fails, each legislative chamber could pass a plan for its own districts, by three-fifths supermajority. If that fails, a 10-member bipartisan commission for the chamber could pass a plan for its own districts; and if a plan were still not produced, Supreme Court judges from opposing parties would select a Special Master to produce a map. Hearings would be required both before and after drawing draft maps. The criteria to be used in drawing state legislative districts would add protections for minority citizens, consideration of communities of interest, and some additional consideration for municipal boundaries to the criteria established in present law.

PROCESS:

The proposal would retain the current structure for congressional districts: drawn by the state legislature by statute, and subject only to federal constitutional and statutory limitations.

For state legislative districts, the first attempt at a plan would be by statute, with the normal possibility of gubernatorial veto and override. If a statute is not passed by June 20, 2011, each legislative chamber would have an opportunity to pass through the resolution process a plan for its own districts, by three-fifths supermajority. If a resolution for any chamber is not passed by July 20, 2011, the process would fall to a ten-member bipartisan commission for that chamber. The majority and minority leaders would each choose five commissioners reflecting the racial, ethnic, geographic, and cultural diversity of the state: of the five, no more than two may be legislators, and at least three may not be state lobbyists, legislative or political party employees, elected or political party officials, or family thereof. If that ten-member commission does not produce a plan by August 20, 2011, the two most senior Supreme Court judges from opposing parties would select a Special Master to produce a map.

The proposal requires the bipartisan commissions for each chamber to be established first, by February 1, 2011, in order for each commission to conduct two public hearings in each of at least five different regions of the state by April 1; reports of the hearings will be filed and made public, along with redistricting data. For any plan passed by statute or resolution, the proposal requires additional hearings in at least four different regions of the state, both before a map is proposed and afterward, with a chance to amend the plan as a result of the hearings. If both of those processes fail, and authority falls to the commission or to the Special Master, additional hearings must be held in at least five regions of the state.

Independence from Legislators: The proposal’s process will be driven by legislators, unless the backup commission assumes control, at which point at least one non-legislator must approve the plan. However, even for the commission, there is no “revolving door” provision – although commissioners may not be legislative employees, nothing prohibits an immediate past employee from serving as a commissioner. Only if the process proceeds to a Special Master is there likely to be meaningful independence from the legislative leadership.

Partisan Balance: If the legislature is relatively balanced, the statutory process, supermajority requirement, structure of the backup commission, and the choice mechanism for the Special Master should all foster a balance among the major political parties in the composition of the line-drawing entity. However, it is important to note that the state Senate is presently 63% Democratic, and the state House is presently 59% Democratic. If either party controls either house by 60%, the proposal would allow that party to control the redistricting process for that house entirely. In the fifty state legislatures, one party currently controls 60% or more of 28 lower houses and 28 upper houses.

Minority Participation: Redistricting by statute or resolution involves a body as diverse as the legislature, and if the process falls to a backup commission, the proposal requires that commissioners be selected considering the diversity of the state, though this requirement will be difficult to enforce by means other than political pressure.

Public Input: The proposal requires substantial public hearings and opportunity for public input, both before and after draft maps are produced.

Timing: The existing state constitution has been construed to prohibit drawing state legislative districts more than once per decade. The proposal would retain the same language, but in different context; it is likely, but not certain, that the proposal would be construed to prohibit drawing state legislative districts more than once per decade. There is no similar prohibition on redrawing congressional districts.

CRITERIA:

Under the proposal, congressional districts would continue to be subject only to federal constitutional and statutory limitations.

The proposal would continue the existing requirement that state legislative districts be compact, contiguous, and “substantially equal” in population. It would also add a requirement mirroring the federal Voting Rights Act, and an additional requirement to provide smaller populations of racial or language minorities an opportunity to “control or substantially influence” the outcome of an election. The proposal would further ask that districts respect communities of interest and municipal boundaries where practical.

Population Equality: The proposal would continue to allow substantial population disparity; some residents’ votes may be more valuable than others, though the flexibility leaves room to keep municipalities or communities together. There is also no express provision to determine whether the state must rely on the count conducted by the federal census (which counts incarcerated persons where they are incarcerated).

Minority Rights: Courts have suggested that the state constitutional requirement of free and equal elections may prohibit vote dilution on the basis of race, independent from the protections of federal law, but the suggestion has not been further explained. The proposed amendment creates notable additional protection of minority rights, also independent from federal law. One provision mirrors the federal Voting Rights Act, and may be interpreted in lockstep with that Act. Another would preserve the ability of smaller minority populations to “control or substantially influence” election outcomes; it is not clear exactly how such language would be interpreted, but if constitutional, could prohibit substantial fracturing of sizable minority populations that do not receive federal protection.

Compactness: The proposal maintains the general (and least prioritized) mandate that districts be reasonably compact. Courts have suggested that obvious deviations from a reasonably compact standard should be justified by some neutral principle, but have not further enforced this suggestion.

District Competition: There is no provision encouraging or discouraging competition within a district.

Statewide Partisan Balance: There is no provision expressly encouraging or discouraging statewide partisan balance, apart from the structure of the decisionmaking body (see above).

Preservation of Political Boundaries: The proposal requires following municipal boundaries where practical, and where doing so does not detract from other priorities.

Communities of Interest: The proposal requires preserving communities of interest where practical, and where doing so does not detract from other priorities.

Nesting: The proposalwould eliminate the existing nesting requirement that ties each house’s districts to the other. Eliminating the nesting requirement permits more flexibility in designing districts, but marginally increases the difficulty of election administration.

Incumbent Residence: The current criteria do not prohibit those drawing the lines from considering the residences of incumbents, allowing intentional harm (or benefit) to individual legislators, but also reducing the likelihood of unintentional impact on incumbents.